When I began practicing employment law, I kept asking myself the same questions:
How is it possible an employer can [fill in the blank — i.e. fire someone because of a disability?] How can employers keep knowingly and intentionally breaking discrimination, harassment and anti-retaliation laws? How can employers deliberately fail to pay employees’ wages, or provide rest breaks?
After a number of cases, I simply answered the question with, “they just do!” So I stopped asking the questions.
But after many more cases and countless depositions of employees up and down the corporate ladder, a common theme emerged. I have identified two primary factors that cause so many employment law cases to occur.
1. Profit is the corporation’s only objective.
The first factor is simply what motivates a corporation, and its employees, to act – money. And while a corporation is not a human, but rather it is a legal entity, a corporation employs humans. These people work to earn a living and, in exchange for a paycheck, they perform work for the employer. As long as the employee does the employer’s work, and does it where, when and how the employer wants, the employee continues to earn a salary or wage. Only by this employment bargain can most employees survive. Most people need a job to buy food, pay for housing and raise a family.
The problem arises when the employer’s profit motive, and its policies, rules and procedures, are in tension with the law. When a disabled worker needs time off to see a doctor, or heal from a surgery, for example, an employer must normally accommodate that need. But the corporate entity sees this legal obligation as costing money. At this point, all bets are off.
2. Human bias and prejudice at work.
The second factor driving employment law cases is that employees at all levels share one common element — they are all human. And humans carry all sorts of biases and prejudices to many degrees. These biases and prejudices usually play a role in discrimination, harassment and retaliation cases. Many of these cases arise out of issues regarding gender, race, sexual orientation, physical or mental disability, etc.
Money combined with human prejudice is a powerful influence. With these factors controlling events, extreme and inhumane conduct often follows. The following real world examples from cases we have litigated illustrate this point:
an employer forced a wheelchair-bound employee, unable to drive, into a door-to-door sales job to force him out of his job
a major corporation enacted a policy to terminate employees for the sole reason that they sought to return from medical leaves
a warehouse employee was made to work under dangerous conditions because he had reported a workplace safety issue to OSHA.
capable and decent employees were harassed to the point of contemplating suicide solely because they were transgender
corporate management framed, set-up and defamed employees to avoid following the law
an employee was falsely accused of a crime because he sought better working conditions
Too often, businesses compound these problems by refusing to admit wrongdoing, even internally. If a manager or supervisor would act to prevent harm to an employee before it happens, many issues or problems could be solved or prevented. But management often refuses to act, knowing a wrong has occurred. Sometimes this occurs out of fear of being exposed to a lawsuit. Sometimes management’s ego, financial incentive or personal bias is at issue. The higher this type of cover-up or wrongdoing rises up the corporate ladder, the bigger the problem the employer will face in the long run.
There is no doubt that employment law cases will continue to arise. We encourage employers to focus on training and educating human resource personnel, supervisors and management to make a priority of not only doing what the law requires, but also doing what is just and right in the first place. Employers could prevent causing financial and emotional hardships to employees by so doing.
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